GANESH B POKHRIYAL, MUMBAI v. ACIT CIRCLE-3, KALYAN

ITA 5291/MUM/2018 | 2014-2015
Pronouncement Date: 29-11-2019 | Result: Allowed

Appeal Details

RSA Number 529119914 RSA 2018
Assessee PAN ABBPP0254F
Bench Mumbai
Appeal Number ITA 5291/MUM/2018
Duration Of Justice 1 year(s) 2 month(s) 17 day(s)
Appellant GANESH B POKHRIYAL, MUMBAI
Respondent ACIT CIRCLE-3, KALYAN
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 29-11-2019
Last Hearing Date 28-11-2019
First Hearing Date 28-11-2019
Assessment Year 2014-2015
Appeal Filed On 12-09-2018
Judgment Text
GANESH B. POKHRIYAL VS. ACI T A.Y 2014 - 15 ITA NO. 5291/MUM/2018 1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH MUMBAI BEFORE SHRI S. RIFAUR RAHMAN ACCOUNTANT MEMBER AND SHRI RAVISH SOOD JUDICIAL MEMBER ITA NO.5291/MUM/2018 (ASSESSMENT YEAR: 2014 - 15) GANESH B POKHRIYAL FLAT NO. 306 3 RD FLOOR CYPRESS BUILDING VASANT VALLEY WAYLE NAGAR KHADAKPADA KALYAN THANE 421 301. VS. ASST. CIT CIRCLE 3 KALYAN 2 ND FLOOR RANI MANSION MURNAD ROAD KALYAN 421 301. PAN ABBPP0254F (APPELLANT) (RESPONDENT) APPELLANT BY: SH. DINESH POKHRIYAL A.R RESPONDENT BY: V. VINOD KUMAR D.R DATE OF HEARING: 28.11.2019 DA TE OF PRONOUNCEMENT: 29 .11.2019 O R D E R PER RAVISH SOOD JM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 3 NASIK (CAMP OFFICE : THANE) DATED 29.06.2018 WHICH IN TURN ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC. 271(1)(B) OF THE INCOME TAX ACT 1961 (FOR SHORT ACT) DATED 24.1 0.2016 FOR A.Y 2014 - 15. THE ASSESSE HAS ASSAILED THE IMPUGNED ORDER ON THE FOLLOWING GROUNDS OF APPEAL BEFORE US: 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER INCOME - TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE PENALTY ORDER PASSED IS ARBITRARY AND IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER INCOME - TAX (APPEALS) ERRED IN CONFIRMING T H E PENALTY ORDER BY KEEPING SILENT ON THE ISSUE O F VIOLATION O PRINCIPLES OF NATURAL JUSTICE. GANESH B. POKHRIYAL VS. ACI T A.Y 2014 - 15 ITA NO. 5291/MUM/2018 2 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER INCOME - TAX (APPEALS) ERRED IN INTERPRETING THE BINDING JUDICIAL ORDERS O F HIGH COURT AND TRIBUNAL ON PENALTY ORDERS. TE APPELLAN T CRAVES LEAVE TO ADD ALTER AMEND MODIFY ANY OF THE GROUNDS OF APPEAL. 2. BRIEFLY STATED THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR A.Y 2014 - 15 ON 30.06.2015 DECLARING A TOTAL INCOME OF RS. 19 46 220/ - . RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED AS SUCH UNDER SEC. 143(1) OF THE ACT. SUBSEQUENTLY THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT UNDER SEC. 143(2) OF THE ACT. 3. AS IS DISCERNIBLE FROM THE ORDERS OF THE LOWER AUTHORIT IES THE A.O IN THE COURSE OF THE ASSESSMENT PROCEEDINGS HAD ISSUED A NOTICE UNDER SEC. 142(1) DATED 08.08.2016 WHICH IS STATED TO HAVE NOT BEEN COMPLIED WITH BY THE ASSESSEE. ALSO IT IS STATED BY THE A.O THAT THE NOTICES UNDER SEC. 142(1) ALONGWITH QU ESTIONNAIRE WHICH WERE SUBSEQUENTLY ISSUED TO THE ASSESSEE ON VARIOUS DATES HAD ALSO REMAINED UNATTENDED. ACCORDINGLY THE A.O ISSUED A SHOW CAUSE NOTICE (FOR SHORT SCN) UNDER SEC. 274 R.W.S 271(1)(B) DATED 05.10.2016 TO THE ASSESSEE AS PER WHICH HE WAS CALLED UPON TO EXPLAIN ON OR BEFORE 18.10.2016 AS TO WHY PENALTY UNDER SEC. 271(1)(B) MAY NOT BE IMPOSED UPON HIM FOR HIS FAILURE TO COMPLY WITH THE NOTICE UNDER SEC. 142(1) DATED 08.08.2016. AS PER T H E ORDER PASSED BY THE A.O THE ASSESSEE HAD FAILE D TO COMPLY WITH THE SCN THAT WAS ISSUED TO HIM UNDER SEC. 274 R.W.S 271(1)(B) AND HAD NEITHER APPEARED BEFORE HIM NOR FURNISHED ANY WRITTEN SUBMISSIONS. OBSERVING THAT THE ASSESSEE HAD SCANT REGARD FOR LAW AND HAD NO EXPLANATION FOR HIS NON - COMPLIANCE OF THE NOTICE THAT WAS ISSUED TO HIM UNDER SEC. 142(1) THE A.O IMPOSED A PENALTY OF RS. 10 000/ - ON HIM VIDE HIS ORDER UNDER SEC. 271(1)(B) DATED 24.10.2016 . 4. AGGRIEVED THE ASSESSEE ASSAILED THE ORDER PASSED BY THE A.O IMPOSING PENALTY UNDER SEC. 2 71(1)(B) BEFORE THE CIT(A). IT WAS OBSERVED BY THE CIT(A) THAT AS THE NOTICE ISSUED TO THE ASSESSEE UNDER SEC. 142(1) DATED 08.08.2016 WAS NOT COMPLIED BY THE ASSESSE E UPTO 05.10.2016 THEREFORE A NOTICE ON THE SAID DATE WAS ISSUED TO HIM UNDER SEC. 271(1)(B) . A S NOTICED BY THE CIT(A) IN RESPONSE TO THE AFORESAID SCN DATED 05.10.2016 AN ADJOURNMENT WAS SOUGHT BY A CHARTERED ACCOUNTANT WHICH IN THE ABSENCE OF ANY AUTHORIZATION WAS DECLINED BY THE A.O . ALSO IT WAS OBSERVED BY THE CIT(A) THAT DES PITE THE FACT THAT THE A.O DUE TO THE NON - COMPLIANCE ON THE PART OF THE ASSESSEE HAD INITIATED THE AFORESAID PENALTY PROCEEDINGS HOWEVER THE ASSESSEE HAD EVEN THEREAFTER F AILED TO FURNISH PROPER INFORMATION AS WAS CALLED GANESH B. POKHRIYAL VS. ACI T A.Y 2014 - 15 ITA NO. 5291/MUM/2018 3 FOR IN THE COURSE OF THE ASSESSME NT PROCEEDINGS. IT WAS NOTICE D BY THE CIT(A) THAT AS THE ASSESSEE HAD FAILED TO FURNISH SUFFICIENT DETAILS THEREFORE THE A.O VIDE HIS ORDER PASSED UNDER SEC. 143(3) DATED 02.12.2016 HAD MADE AN ADDITION OF RS.26 64 699/ - . OBSERVING THAT AS THE ASSESSE E BY ADOPTING A NON - COOPERATIVE ATTITUDE HAD FAILED TO COMPLY WITH THE NOTICE U/S 142(1) DATED 08.08.2016 AND ALSO NOT FURNISHED THE COMPLETE DETAILS BEFORE THE A.O DESPITE REPEATED NOTICES INCLUDING NOTICE U/S 144 THE CIT(A) UPHELD THE PENALTY OF RS. 10 000/ - IMPOSED BY THE A.O UNDER SEC. 271(1)(B). 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. IT WAS AVERRED BY THE LD. A.R THAT THOUGH THE ASSESSEE IN COMPLIANCE TO THE NOTICE ISSUED BY THE A.O UNDER SEC. 274 R.W.S 271(1)(B) AND NOTICE U/S 142(1) HAD VIDE HIS LETTER DATED 17.10.2016 SOUGHT AN ADJOURNMENT FOR THE REASON THAT HIS CHARTERED ACCOUNTAN T AT THE RELEVANT POINT OF TIME WAS BUSY WITH THE FILING OF THE RETURNS OF INCOME AND HAD REQUES TED THAT THE MATTER BE TAKEN UP AFTER 07.11.2016 HOWEVER THE SAID REQUEST OF THE ASSESSEE WAS NEVER CONSIDERED BY THE A.O. IT WAS SUBMITTED BY THE LD. A.R THAT EVEN IN THE ORDER PASSED BY THE A.O UNDER SEC. 271(1)(B) THERE WAS NO REFERENCE OF THE SAID R EQUEST FOR ADJOURNMENT THAT WAS FILED BY THE ASSESSEE. ON A PERUSAL OF A LETTER DATED 24.10.2016 OF THE A.O WE FIND THAT THE A.O HAD STATED THAT THE REQUEST FOR ADJOURNMENT MADE BY THE ASSESSEE VIDE HIS LETTER DATED 17.10.2016 (RECEIVED ON 19.10.2016) IN RESPONSE TO NOTICE ISSUED UNDER SEC. 142(1) DATED 05.10.2016 WAS REJECTED . AS IS DISCERNIBLE FROM A PERUSAL OF THE AFORESAID LETTER DATED 17.10.2016 WE FIND THAT THE ASSESSEE HAD SPECIFICALLY SOUGHT AN ADJOURNMENT BOTH IN RESPECT OF THE PENALTY PROCEED INGS U/S 274 R.W.S 271(1)(B) AND ALSO THE NOTICE ISSUED U/S 142(1). AS REGARDS THE REQUEST OF THE ASSESSEE FOR ADJOURNING OF THE PROCEEDINGS U/S 274 R.W.S 271(1)(B) VIDE HIS LETTER DATED 17.10.2016 (RECEIVED BY THE A.O ON 19.10.2016) WE FIND THAT THERE IS NO WHISPER ABOUT THE SAME AT ALL IN THE AFORESAID LETTER DATED 24.10.2016 OF THE A.O. APART THEREFROM WE ALSO DO NOT FIND ANY REFERENCE ABOUT SEEKING OF ADJOURNMENT BY THE ASSESSEE VIDE HIS LETTER DATED 17.10.2016 (RECEIVED BY THE A.O ON 19 .10.2016) IN HIS ORDER PASSED UNDER SEC. 271(1)(B). IN TOTALITY OF THE FACTS OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE WAS NEVER INTIMATED ABOUT THE FATE OF HIS LETTER DATED 17.10.2016 (RECEIVED BY THE A.O ON 19.10.2016) INSOFAR HIS RE QUEST FOR ADJOURNING THE PENALTY PROCEEDINGS UNDER SEC. 274 R.W.S 271(1)(B) WAS CONCERNED. IN FACT IT CAN SAFELY BE HELD THAT THE ASSESSEE HAD REMAINED DIVESTED OF A SUFFICIENT OPPORTUNITY OF BEING HEARD BEFORE BEING SADDLED WITH THE PENALTY UNDER GANESH B. POKHRIYAL VS. ACI T A.Y 2014 - 15 ITA NO. 5291/MUM/2018 4 SEC. 27 1(1)(B). APART THEREFROM WE FIND THAT SUBSEQUENTLY THE A.O HAD PASSED THE ASSESSMENT ORDER U/S 143(3) AND NOT UNDER SEC. 144. ACCORDINGLY IT CAN SAFELY BE CONCLUDED THAT THE SUBSEQUENT COMPLIANCES/FURNISHING OF INFORMATION BY THE ASSESSEE WERE HELD BY TH E A.O TO BE GOOD COMPLIANCES AND THE DEFAULTS COMMITTED EARLIER WERE IGNORED BY HIM. AS OBSERVED BY THE ITAT DELHI IN THE CASE OF (I). AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST VS. ACIT [5 DTR 429 ](DELHI) AND (II). GLOBUS INFOCO LIMITED VS. A CIT [ITA NO. 738/DEL/2014; DATED 29.06.2016] THE FRAMING OF ASSESSMENT UNDER SEC. 143(3) THOUGH NOT CONCLUSIVELY BUT TO SOME EXTENT WOULD RULE OUT THE CIRCUMSTANCES JUSTIFYING IMPOSITION OF ANY PENALTY UNDER SEC. 271(1)(B). ACCORDINGLY IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS WE ARE UNABLE TO SUBSCRIBE TO THE IMPOSITION OF PENALTY OF RS. 10 000/ - UNDER SEC. 271(1)(B) BY THE A.O AND FINDING THE SAME TO BE UNJUSTIFIED QUASH THE SAME. 6. RESULTANTLY THE ORDER OF THE CIT(A) IS SET ASIDE AND THE APP EAL OF THE ASSESSEE IS ALLOWED. SD/ - SD/ - ( S.RIFAUR RAHMAN) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 29 .11.2019 PS. ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. / DR ITAT MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI . GANESH B. POKHRIYAL VS. ACI T A.Y 2014 - 15 ITA NO. 5291/MUM/2018 5